Wattlevilla Pty Ltd v Western Downs Regional Council & Anor - [2014] QPEC 47

PLANNING & ENVIRONMENT COURT
OF QUEENSLAND

CITATION:

Wattlevilla Pty Ltd v Western Downs Regional Council & Anor [2014] QPEC 47

PARTIES:

WATTLEVILLA PTY LTD
(appellant)

v

WESTERN DOWNS REGIONAL COUNCIL
(respondent)

and

RUSSELL PASTORAL COMPANY
(co-respondent by election)

FILE NO/S:

4500/12

DIVISION:

Planning & Environment Court

PROCEEDING:

Appeal

ORIGINATING COURT:

Planning & Environment Court at Brisbane

DELIVERED ON:

28 August 2014

DELIVERED AT:

Maroochydore

HEARING DATE:

29 April, site inspection 30 April, 1^st-2^nd May, 5^th-9^th May

JUDGE:

Robertson DCJ

ORDER:

Appeal Dismissed

CATCHWORDS:

PLANNING & ENVIRONMENT; Appeal against refusal for a development permit for a material change of use; whether the impacts on amenity both visual and general from the proposed use were such as to constitute conflict with the Planning Scheme; where proposal abuts a historical site; whether conflict arises because of co-location of incompatible uses; whether proposal conflicts with Planning Scheme; whether grounds exist to approve notwithstanding conflict.

PRE-EXISTING LAWFUL USE RIGHTS: where building approvals to add cold rooms had been obtained but where no town planning permit had ever been obtained; where intensity of scale of use had increased.

COUNSEL:

Mr Houston for the appellant

Mr S Ure for the respondent

Mr C Hughes QC and Mr J G Lyons for the co-respondent by election

SOLICITORS:

HWS Lawyers for the appellant

King and Company for the respondent

Norton Rose Australia for the co-respondent by election

Introduction

This appeal is against a refusal by the Western Downs Regional Council on 23 October 2012 of an application originally made on 16 December 2010 by the appellant Wattlevilla Pty Ltd for a development permit for a material change of use:

“(a)to establish a Noxious Industry, as defined under the local planning scheme, by extension of an existing abattoir; and
(b)for an Environmentally Relevant Activity (‘ERA’), Threshold 1(a) of Schedule 2, Part 25 Environmental Protection Regulation 2008 (‘the EP Regulation’) – processing, not including rendering, 1000t to 5000t of meat in a year.”

The reason for the lengthy delay in making the decision is evident from the material. The Department of Environment and Resource Management (as it was then known) was not originally notified as a referral agency but became involved on 7 April 2011 as a result of a complaint, and it was necessary for the application to be amended to include part (b) of the application. To respond to complaints about odour and possible environmental impacts from overflow from effluent ponds on the site, I infer that Wattlevilla (on advice from consultants) further amended its Development Application to include Lot 363 as part of its application, and both DERM and DTMR were identified as concurrence agencies. Lot 363 is proposed to be used for effluent irrigation, with effluent being piped from the site west to Lot 363. Mr Lincoln Waldock (the principal of Wattlevilla) and his family reside at Lot 363 which they purchased in 2010. In accordance with the DTMR response, Wattlevilla is piping effluent from the open effluent ponds presently on-site, along Jimbour Station Road to Lot 363.

The Russell Pastoral Company (“RPC”) as an adverse submitter elected to join the appeal as a co-respondent. As well as engaging its own experts (town planning, heritage, flooding, air and odour impacts, etc.), the principal of RPC, Mr David Russell QC, and Mr Karl Graham, the manager of Jimbour Station, provided affidavits on behalf of RPC. Neither was required for cross-examination.

The site and the locality

Lot 4 on SP121405 is situated at 46 Jimbour Station Road, Jimbour East, and is an irregularly shaped block having an area of approximately 1.72 hectares. Lot 363 is approximately 500 metres to the west of Lot 4. Lot 4 has a frontage of some 120 metres to Jimbour Station Road.

To the east of the existing abattoir site are the cattle yards and silos associated with Jimbour Station. To the southeast of the site are two detached dwellings including one occupied by Mr Karl Graham. Approximately 600 metres to the east of the existing abattoir is the entrance to Jimbour Station and historic Jimbour House.

Mr Ure in his submission describes Jimbour House as a State listed heritage place and although a private residence, its gardens are open daily to visitors, its chapel is available to the public for weddings, and there is an amphitheatre located close to Jimbour House which is used for biennial opera performances and other musical events. Mr Hughes QC and Mr Lyons in their joint submission give a much more expansive description based on the undisputed evidence of Mr Russell QC and Exhibit 21, the affidavit of Mr Ivan McDonald, heritage architect. The description from paragraphs 30 to 53 of their trial submission is accepted. Mr Hughes QC described it in his final address as “a living, breathing piece of our history, and it’s been there since not long after the European settlement or invasion of this country”.

Approximately 1,100 metres to the west of the existing abattoir is the small township of Jimbour, which has a primary school and a small number of residents. Upon entering the small township of Jimbour there is clear signage directing visitors to historic Jimbour House, which is beyond doubt the most significant building in the Western Downs, described by Mr Hughes QC and Mr Lyons appropriately as the “jewel in the crown” for the Western Downs.

The existing use

The existing use of Lot 4 as an abattoir is the subject of a dispute as to its lawfulness. It is common ground that part of the site has been used as a slaughterhouse since 1976. Lot 4 was originally part of Jimbour Station. In 1976, the irregularly shaped block, which then included the historic Jimbour Cemetery, was excised off and transferred from (an entity associated with RPC) to Mr and Mrs Grey and, on 1 July 1976, they received a building approval for what was described in the permit as a “slaughterhouse”, and in the associated plans as a “proposed new slaughterhouse for Mr and Mrs Grey”. The historical aerial photographs in Exhibit 1 do show some form of building to the west of the access road from Jimbour Station Road in 1958, but it is probable that the building constructed by the Greys in accordance with the approval, is the one depicted at the northern end of the land but to the east of the access road in the aerial photograph from 1982. It is that building in that position that has expanded both in shape and size since.

Wattlevilla purchased the land in 1995. The land then had an area of 2.1 hectares and was associated with a butcher shop located in the town of Jimbour which retailed to the public. In about 2000, Mr Waldock was approached by the representatives of RPC and Council, and was asked to agree to transfer the land containing the historic cemetery to Council, which he did. Searches have revealed that the transfer has not been registered but no issue relevant to the appeal arises out of that. Mr Waldock intends to proceed as required to give legal effect to the agreement he reached. As a result of that agreement the original Lot 1 was cancelled and three separate lots were created – Lot 4, Lot 3 (the cemetery land) and Lot 2 (part of Jimbour Station).

Mr Karl Graham (whose father also managed Jimbour Station) says in his affidavit that:-

“(a)In the late 1980s, the Grey family undertook and upgraded the slaughterhouse, which included increasing the size of the kill floor, the installation of a new roof on ‘the rendering shed’ and an expansion of the yards; and
(b)My understanding is that the upgrade was to bring the abattoir up to proper standards at that time;
(c)David Hardie and Partners purchased the business from Mr and Mrs Grey in the later 1980s, and took ‘a more commercial approach’ to the running of the abattoir and substantially increased the kill numbers – two or threefold.”

In or about October 2002, Wattlevilla applied to the Council for approval of two new cold rooms. On 9 October 2002, Council issued a building approval, subject to conditions. In or about January 2009, Wattlevilla lodged an application with Council for an additional cold room. Subsequently, that application was withdrawn and an application was instead processed by a Private Certifier. A Decision Notice was issued on 20 July 2009. Between about September 2008 and September 2011 Wattlevilla constructed four effluent treatment ponds in the south-west area of the block.

In around 2005 to 2006 the abattoir began supplying product to Brisbane. Around 2006 to 2007 the abattoir increased the supply of products to Brisbane and commenced supplying to the Sunshine Coast area. Around 2006 to 2007 the abattoir started producing carcasses for interstate customers based in Sydney or Melbourne, and there has been a significant increase in throughput as a result of the movement away from supplying meat for the local community to the wholesale use that is currently occurring on the subject site.

The unlawfulness issue focuses on the commencement of the Integrated Planning Act 1997 (“the IPA”) on 30 March 1998. Prior to the coming into force of the IPA, under the common law, and indeed under the Local Government (Planning and Environment) Act 1990, historic existing lawful uses had broad rights of expansion. This right was extinguished by the IPA in circumstances where there was a material change in the character, intensity or scale of the use of the premises. Whether a change in the intensity of scale of a use will constitute a Material Change of Use is a question of fact and degree: Maroochy Shire Council v Barnes [2001] QPELR 475.

On the one hand Council (despite having issue to building approval in October 2002 to Wattlevilla for two new cold rooms, and being aware at least of its application in 2009 for an additional cold room) submits at paragraph 47 of its trial submission:-

“It is the contention of the respondent that there was a Material Change in the Scale or Intensity of the Use no later than by June 2000. The use increased in scale and intensity by some 50% in the year ending June 1999, and then almost doubled in the year ending June 2000.”

RPC is more benign. It contends that the material change of use occurred “about 2006”.

Mr Houston’s argument at trial was that, irrespective of any need to determine a particular date which it might be said that a town planning approval was required, there has been an abattoir on this site for many years, it has expanded, over time and it is presently the subject of an impact assessment by the Court.

The proposal

The layout of the abattoir as it currently exists on the site is shown in plan form in Exhibit 1, at p 32. The proposal plans which were considered by the Council, which were the subject of initial joint expert meetings, are set out in Exhibit 1 at pp 26-29.

The development application seeks approval for expansion of the existing abattoir to accommodate an increase in the slaughtering capacity of the operation.

It is agreed between the town planning experts that the development application proposes an increase in gross floor area (“GFA”) from 224.71m² to 932.51m² (an additional 707.80m²), by extensions including:

(a) two additional cold rooms;

(b) two additional kill floors; and

(c) a new wash room.

Mr Ure on behalf of the Council (in his usual economic style) summarises the proposal as follows:

“12.The width of the building will increase from 17 metres to 43 metres.
13.The maximum height of the building will increase by some 2.2 metres to approximately 8.1 metres. The building is located some 2 metres from the northern boundary of the property with the road reserve and, at its closest point in the order of only 1 metre from the eastern boundary.[1]
[1]This refers to the present building.

14.The number of employees will increase from the current 10 full-time staff, two part-time operational staff and two part-time administrative staff, to 18-21 fulltime operational staff and two part-time administrative staff.

15.The number of pigs slaughtered will double from approximately 800 per week to 1500 per week and the number of cattle slaughtered will increase from some 34 head per week to 44 head per week.
16.Currently there are 12-14 truck deliveries of pigs per week. This will more than double to some 28-31 truck deliveries per week being body trucks or single or double-deck semi-trailers. In addition, there will be three cattle deliveries per week, either single-deck trucks or double-deck semi-trailers.
17. A 40 foot trailer of waste will be trucked away Mondays, Tuesdays, Wednesdays and Fridays between 3:00PM and 5:00PM. The proposed operations would generate around 48-50 tonnes of solid waste per week.
18.An abattoir owned truck will depart to deliver processed carcasses on Sunday, Monday and Wednesday between 8:30PM and 10:30PM. There will be some nine services per week between 5:00AM and 7:30AM on Mondays, Tuesdays, Wednesdays and Thursdays of other refrigerated trucks taking processed product from the abattoir.
19. The effluent will be pumped from the facility to four effluent ponds at the southern end of Lot 4. The effluent will then be piped to Lot 363 and irrigated on that land.
20. Activity will commence on the land at 4:30AM. Slaughtering would take place between 5:00AM and 5:30PM on Mondays, Tuesdays, Wednesdays and Fridays and loading of the abattoir truck is proposed to occur on Sunday, Monday and Wednesday between 8:30PM and 10:00PM. Delivery of livestock is proposed between 6:30AM to 6:00PM on Mondays to Fridays and 3:00PM to 5:00PM on Sundays.”

In addition, in the event of approval, the anaerobic ponds that currently exist on Lot 4 are to be merged into one large pond with three other large ponds created which will abut the boundary of Lot 4.

The legislative framework

The development application was lodged under the Sustainable Planning Act 2009 (“the SPA”). The appeal was commenced under s 461 of the SPA; is by way of hearing anew; and must be decided on the laws and policies applying when the development application was made, although the court may give weight to any new laws and policies that it considers appropriate: s 495(2)(a) of the SPA. Wattlevilla bears the onus of establishing that the appeal should be allowed: s 493(1) of the SPA.

The court must assess the application in accordance with s 314 of the SPA; and decide the application for the proposal in accordance with ss 324 and 326 of the SPA. Pursuant to s 326 of the SPA a decision to approve must not conflict with the Wambo Shire Planning Scheme 2005 (“the Wambo Planning Scheme”) unless there are “sufficient grounds” to justify that decision despite the conflict.

“Grounds” is defined in Schedule 3 of the SPA, in respect of s 326(1) as:

“1. Grounds means matters of public interest.
2.Grounds does not include the personal circumstances of an applicant, owner or interested party.”

The principles relevant to the construction of a planning scheme, which is a “relevant instrument” pursuant to s 326(1) of the SPA, are well known. Planning schemes should be construed broadly rather than pedantically or narrowly and with a sensible, practical approach; they should be construed as a whole; they should be construed in a way which best achieves their apparent purpose and objects; although planning documents have the force of law they are not drawn with the precision of an Act of Parliament.

The term “conflict” was considered by the Court of Appeal in Woolworths Ltd v Maryborough City Council (No 2) [2006] 1 Qd R 273 at [23] where Fryberg J relevantly observed:

“‘Conflict’ in this context means to be at variance or disagree with. It describes a quality of a relationship between the subject (the decision) and a part of the predicate (the scheme). Unlike ‘compromise’ in para (a), it implies no particular impact by a subject upon an object. A determination that there has been a breach of the requirement that ‘the assessment manager’s decision must not … conflict with the planning scheme’ requires the identification of the decision, the identification of some part or parts of the scheme with which the decision might be said to conflict and a decision whether the former conflicts with the latter. Only if such a determination has been made is it necessary to consider whether there are sufficient planning grounds to justify the decision.”

This decision did not alter the approach of the Court of Appeal in Weightman v Gold Coast City Council [2003] Qd R 441 at [36] where Atkinson J observed:

“In order to determine whether or not there are sufficient planning grounds to justify approving the application despite the conflict, as required by [the then applicable section], the decision maker should:
1. examine the nature and extent of the conflict;
2. determine whether there are any planning grounds which are relevant to the part of the application which is in conflict with the planning scheme and if the conflict can be justified on those planning grounds;
3. determine whether the planning grounds in favour of the application as a whole are, on balance, sufficient to justify approving the application notwithstanding the conflict.”

The Weightman approach has been confirmed recently in Lockyer Valley Regional Council v Westlink Pty Ltd (2012) 191 LGERA 452; [2013] QPELR 182; [2012] QCA 370. In an earlier appeal concerning the same proposal (Lockyer Valley Regional Council v Westlink Pty Ltd (2011) 185 LGERA 63; [2012] QPELR 354; [2011] QCA 358) the Court equated conflict in the Weightman sense with “at variance”. In the Woolworths decision the Court in affirming the Weightman approach did say that the decision was not a “code for the determination of justification”.

The disputed issues

As a result of a number of court orders, the issues in the appeal are identified as follows:
(i)          The proposed development is inappropriately located having regard to adjoining properties and land uses including Jimbour Historical Cemetery, Jimbour Station and Jimbour House (a heritage place) and will have an unacceptable impact on the amenity, ambience and character of the locality, those adjoining properties and Jimbour Station Road.
(ii)        The subject site is an inappropriate location for the proposed development which is not a rural use or rural activity but a “noxious industry” (as defined in the Wambo Planning Scheme).
(iii)        The subject site is too small to accommodate the proposed abattoir and necessarily associated infrastructure, together with appropriate setbacks and buffering to adjoining public and privately owned land.
(iv)       Approval of the proposed development will be in conflict with the Planning Scheme (as identified in the joint report of the town planning experts) and there are insufficient grounds to warrant approval notwithstanding such conflict.
(v)        There is no public, community or town planning need for the proposed abattoir to be located on the subject site.
(vi)       It has not been demonstrated that the conduct of the proposed use, even subject to conditions of approval, can be managed without:
(a)         at least occasional unacceptable impacts on the amenity of the locality having regard to odour and noise; and
(b)         permanent unacceptable amenity impacts resulting from concentrated truck traffic generation and visual impacts.
(vii)       Whether the present use as an abattoir is lawful.
(viii)      The proposal for effluent treatment on Lot 4 and on Lot 363 will have unacceptable impacts on good quality agricultural land and strategic cropping land.
The Wambo Shire Planning Scheme 2005

Under the Wambo Planning Scheme the subject site is in the Rural Zone. The Rural Zone is “intended primarily for rural uses and associated activities”. It is accepted that the proposal is for a “noxious industry” which is defined under the Planning Scheme as meaning:

“… an industry where:
(1) the use of ‘Premises’ causes detriment to the amenity of the area by reason of the emission of noise or vibration; and
(2) the process involved; or the method of manufacture; or the nature of the materials or goods which are used, produced or stored:
(a) causes fumes, vapours or gases, or discharges dust, foul liquid, blood or other impurities; or
(b) constitutes a danger to persons or ‘Premises’.”

By virtue of being a noxious industry the Planning Scheme includes the proposed use in the Planning Scheme as “industrial activities”.

The application for material change of use is impact assessable in the Rural Zone because the total area exceeded 150m². This is a reference to the Rural Zone Table of Assessment in s 4.1.21 at p 4.1.1 of the Planning Scheme.

In Part 3 of the Planning Scheme, a number of Desired Environmental Outcomes for the Shire are set out. Of relevance to the issue of the proximity of the site to Jimbour House and Jimbour Historical Cemetery is the statement under the Natural Environment heading to the effect that “areas and items of cultural significance … are identified to ensure their environmental and landscape values and historic significance are protected and enhanced through compatible development”.

Mr Brown (planner engaged by RPC) and Mr Perkins (planner engaged by Council) both opine that although an abattoir is potentially a suitable used in the Rural Zone, it is completely unsuitable on this particular site. Their opinions refer to the size of the land, the proximity of buildings and infrastructure to the front and side boundaries, and the proximity of the site to Jimbour House and the cemetery. Mr Perkins expressed his opinion thus in his trial report:

“It is hard to conceive that a site with such a sensitive setting, and of such a small and irregular size would otherwise be seriously considered for the proposed development.”

The Purpose of the Rural Zone and “zone code” is set out at 4.1.33 of the Planning Scheme. It is common ground that an industrial use is allowed in the zone e.g. 4.1.3.3(5)(d) states:

“(5) Within the Rural ‘Zone’, the Rural ‘Zone’ Code allows for:
…
(d)limited industrial ‘uses’, where it can be demonstrated those ‘uses’ are associated with rural production and can not reasonably be established in the Industrial ‘Zone’.”

Relevant to issues raised in the appeal and assessment of the proposal generally are the outcomes which are described in 4.1.3.3 as the “Purpose of the Code”, and these are:

“…
(4) Within the Rural ‘Zone’, ‘development’:
…
(b) protects Good Quality Agricultural Land (GQAL) from fragmentation, alienation or encroachment of incompatible land ‘uses’ in accordance with State Planning Policy 1/92 – Development and Conservation of Agricultural Land;
(c) is located, designed and operated in a manner that protects and enhances the predominant rural scale, intensity, form and character;
(d) maintains the rural amenity;
(e) does not prejudice or impact adversely on other ‘uses’ including those within other ‘Zones’;
...
(h) protects areas and sites of conservation importance, including cultural and high landscape values;”

4.1.3.4 contains the Rural Zone Code and provides Performance Criteria, Acceptable Solutions, for both self assessable and “material change of use” development.

Relevantly (to the issues raised in the appeal and to the assessment generally) are the following Performance Criteria and Acceptable Solutions:

“

*‘Material change of use’*
Performance Criteria		Acceptable Solution	…
Location	*PC1 Non-’Rural activities’ - Locational Criteria* Non-’Rural activities’ are located in the Rural ‘Zone’ only where those activities: (a) do not impact adversely on the amenity of the Rural ‘Zone’; (b) demonstrate a nexus with rural activities or natural or cultural resources; … (e) protect the landscape values and scenic qualities of the rural ‘Zone’.	No acceptable solution is prescribed.
Amenity	*PC2 Non-’Rural activities’ -Scale* Non-’Rural activities’ are of an appropriate scale to protect the amenity of the Rural ‘Zone’ and do not prejudice the operation and viability of other ‘Uses’ or activities in the Rural ‘Zone’ or other ‘Zones’.	AS2 The ‘Total use area’ is less than 150m² on a lot.
Amenity	*PC3 Non-’Rural activities’ -Operating Hours* Non-’Rural activities’ are operated so as to ensure that the activities and the operation of equipment occur at appropriate times to protect the amenity of the Rural ‘Zone’.	AS3 Non-’Rural activities’ are operated only between the hours of 7:00am and 6:00pm.
Amenity	*PC4 Non-’Rural activities’ -Delivery of Goods* The loading and unloading of goods in connection with non- ‘Rural activities’ occurs at appropriate times to protect the amenity of the Rural ‘Zone’.	AS4.1 Loading and unloading occurs only between the hours of: (a) 8:00am and 6:00pm, Monday to Friday and (b) 8:00am and 12:00 (noon) on Saturdays. AS4.2 No loading and unloading occurs on Sundays and Public Holidays.
…
Amenity	*PC7 Setbacks and Boundary Clearances* ‘Buildings’ and ‘Structures’ are located to ensure the rural amenity is protected and enhanced.	AS7.1 ‘Buildings’ and ‘Structures’ have a setback of not less than 20 metres from any road frontage other than a State Controlled Road …. AS7.2 ‘Buildings’ and ‘Structures’ have side and rear boundary clearances of not less than 15 metres from property boundaries. …
Amenity	*PC8 Transport Movements* Transport movements associated with the use protect the amenity of the locality.	For ‘Rural activities’ and ‘Industrial activities’: AS8 Transport movements do not occur through residential areas. …
Amenity	*PC9 ‘Building’ and ‘Structure’ Design* ‘Buildings’ and ‘Structures’ are designed such that the amenity of the Rural ‘Zone’ is protected and maintained.	No acceptable solution is prescribed.
…
Amenity	*PC11 Landscaping and External Activity Areas* Landscaping and external activity areas are provided on - site to: (a) contribute to a pleasant and functional rural built form; (b) provide positive sun and breeze control; (c) make provision for recreation areas; and (d) contribute to the Rural ‘Zone’s’ positive visual qualities.	No acceptable solution is prescribed.
…
Amenity	*PC13 Separation of Incompatible Land Uses* Separation distances are provided to ensure: (a) the future viability of surrounding ‘Uses’; … (c) an appropriate standard of amenity and public safety; and (d) conflict arising from incompatible ‘Uses’ is minimised.	…
…
Environmental	*PC26 Cultural Heritage* ‘Development’ ensures the protection and maintenance of places and items of cultural heritage	…
…
Constraint	*PC33 Good Quality Agricultural Land Areas* Good Quality Agricultural Land areas as identified on the Land Characteristics Map – Good Quality Agricultural Land are conserved and managed for the longer term and protected from development that may lead to its alienation or diminished productivity. ... ⁶	No acceptable solution is prescribed.

6 In order to demonstrate compliance with PC33 the applicant shall prepare a study that identifies how the development is in accordance with the requirements of State Planning Policy 1/92 – The Development and Conservation of Agricultural Land and the Planning Guidelines: The Identification of Good Quality Agricultural Land and Separating Agricultural and Residential Land Uses 1997.”

In Schedule 2 Division 6 of the Planning Scheme, places and items of Cultural Heritage are listed but limited to known cemeteries and burial sites, and refers specifically to the Jimbour Historical Cemetery site. Jimbour House is not mentioned in the Planning Scheme but is listed as a place of cultural heritage significance on a number of heritage registers including The Queensland Heritage Register. There is no suggestion that references to cultural heritage and cultural values in the Planning Scheme do not include Jimbour House. Given its historical and cultural importance, and its undoubted contribution to economic and cultural values in the Shire, it is surprising that it is not specifically referred to in the Planning Scheme, but, nothing turns on this.

The disputed issues discussed
(a) The unlawful use issue

There is no doubt that the site has been used historically for sometime as a slaughterhouse and/or abattoir. The first town planning scheme for the Wambo Shire affecting the site commenced on 4 February 1984. In the definition section of that scheme (the superseded scheme), “Abattoir” was defined as “Noxious or hazardous industry”. It was a Column IV use in the Table of Zones, and as such required consent of the Council. It is common ground that no town planning permit has ever been granted to use the site for an abattoir or slaughterhouse at any time, or (until the present application) has a permit been sought. However by virtue of s 33(1A) of the Local Government Act 1936 (as amended in 1975) any lawful use immediately before the superseded scheme applied to the land, continued to be a lawful use “notwithstanding any provision in the scheme … to the contrary”.

The superseded scheme recognised (as was customary in the schemes of that era) “Existing Non-conforming uses”, such that with its commencement the then existing slaughterhouse was a lawful use as long as the land continued to be used for that purpose. With the introduction of the Local Government (Planning and Environment) Act 1990 in April 1991, recognition of pre-existing lawful use rights continued.

The commencement of the Integrated Planning Act 1997 (“IPA”) on 30 March 1998 introduced for the first time the concept of “material change of use” defined relevantly as “a material change in the character, intensity or scale of the use of the premises”. IPA continued protection of lawful pre-existing rights, but did not recognise broad rights expansion of the lawful use as coming under that protection, so that if there was a change in the intensity or scale of the use after 30 March 1998, this constituted a material change of use.

In this appeal, in reliance primarily on the frank evidence of Mr Waldock, and relevant to increase in the scale and intensity of the use since 30 March 1998, Council argues that the “trigger” was no later than June 2000; so that absent a permit (under the superseded scheme), the use was unlawful to the extent it was above the intensity and scale of the 2000 level. The relevant evidence is in attachment “B” to Exhibit 12, Mr Waldock’s trial statement, which he describes as “a spreadsheet showing the numbers and tonnage of livestock slaughtered each year from the date of purchase … in 1995”. As Mr Ure notes in his trial submission, the use increased in scale and intensity by some 50% in the financial year ending June 1999, and then almost doubled in the year ending June 2000. This was probably associated with the purchase by Wattlevilla of the Roma butcher shop. In the following financial year the Roma shop was sold. Sometimes, as a matter of fact and degree, it will be relatively straightforward to determine that a material change of use has occurred: see Scenic Rim Regional Council v Gillion Pty Ltd [2011] QPEC 143; sometimes it will not. In this case RPC argue that the trigger more probably than not occurred in about 2006. At [74] of its trial submission it states:

“74.Overall the evidence confirms that at the very best for the Abattoir, the material change of use may not have occurred until about 2006 when:
(a) production leapt from about 5,091 to 6,982 and then 12,460 kills;
(b) the Abattoir began supplying to Brisbane and the Sunshine Coast and purchased its own delivery track (Exhibit 12 paragraph 24 and 25);
(c) it must have become obvious that effluent treatment ponds were required (Exhibit 12 paragraph 30 and 31); and
(d) before production first exceeded 1,000 tonnes of product - a figure relevant to ERA approvals (Exhibit 12, Attachment B and the Town Planning JER at paragraph 2.4.12: Mr Ovenden).”

In its submission in reply, Wattlevilla incorrectly asserts that paragraph (c) contains an “erroneous assumption that the effluent ponds were installed in 2006”. That is not what it says. The proposition contained in (c) was not put to Mr Waldock so it plays no part in my conclusions.

In its trial submission at [241] Wattlevilla states:

“241.With the commencement of the IPA in March 1998, with provisions regarding the intensification of a use constituting a material change, it is arguable that, at some time after the Act’s commencement, it would have been appropriate to make an application for a material change of use. However, it is by no means straightforward to identify the specific trigger for such an application, given that what was in fact occurring was simply an increase of production through the existing facility.”

Clearly what has “in fact” occurred since 30 March 1998 was more than a simple “increase in production through the existing facility”. Based on Mr Waldock’s evidence alone, the business itself has also changed significantly from supplying the Jimbour butchery, which it owned, to wholesale supply of product to Brisbane and the Sunshine Coast. In 2002, the one original cold room had been supplemented with an additional two cold rooms obviously to meet the increasing demand evidenced by the increase in production demonstrated in attachment “B” to Exhibit 12.

Certainly, as can be seen from paragraph 12 of its Notice of Appeal filed 16 November 2012, at that stage Wattlevilla was certainly asserting existing lawful use rights, and refers in 12(b) to a Council meeting minute on 7 November 2012 to which I will refer later.

As I endeavoured to establish in discussion with Mr Houston on day 7 of the hearing, it seemed to me that Wattlevilla had departed somewhat from its unequivocal assertions in its Notice of Appeal.

At [246] of his trial submission Mr Houston further submits:

“246.Irrespective of any need to determine a particular date at which it might be said that a town planning approval was required, there has been an abattoir on this site for many years, it has expanded over time and it is presently the subject of an impact assessable application.”

He is quite correct that his client’s present application is impact assessable, however the existence or not of lawful pre-existing use rights (which the onus of establishing lies on Wattlevilla: Logan City Council v Poh [2013] QPELR 351) is of more significance. Firstly, it is well establish that an applicant who, for example, is seeking to regularise an existing but unlawful use e.g. the applicant in Gillion Pty Ltd v Scenic Rim Regional Council & Ors [2013] QPELR 711 [36] –[45] receives no benefit because the use is already in place: Westfield Management Ltd v Pine Rivers Shire Council & Anor [2005] QPELR 534. Secondly, although the assessment manager can have regard to all factual matters, even those created by a period of unlawful use, the weight to be afforded to the evidence of witnesses, including experts, whose evidence may be predicated on a belief that the present use is lawful, may be undermined. This may also impact on an assessment of reasonable expectations of residents in the locality by reference to the planning scheme controls. In his submission in reply dated 12 May 2014, Mr Houston advanced the submission he had made in his written trial submission and in oral submissions to me on the seventh day of the hearing. In his reply he submits that as a matter of fact and degree a requirement arose for an application for a material change of use in the July 2008-June 2009 financial year.

Mr Ovenden (town planner for Wattlevilla) certainly proceeded on the basis that he thought the present use was lawful, and by comparing the present operation with the proposal, opined that the improvements (particularly in relation to amenity impacts associated with noise and odour) to be implemented as conditions to an approval which would attach to any such approval, was a matter of public interest. Mr King also proceeded on the basis that the conditions proposed by the experts in his fields would result in a better outcome to what is presently occurring on the site. It is not an easy task for the assessment manager to weigh these opinions, given the conclusions I have reached as to when the material change of use trigger was reached.

I comfortably conclude that by the end of the 2006/2007 financial year a material change of use had occurred in the sense of “a material change in the … intensity or scale of the use of the premises”.

Mr Waldock’s evidence establishes that since then a further significant increase in scale or intensity has occurred in relation to output, and with the addition of another cold room at the north-eastern corner of the building. Paradoxically, in the same period, Mr Waldock has attempted to deal (with some success) with amenity impacts arising from the unlawful use and directly related to complaints mainly to do with odour from wastewater or effluent draining across the western portion of Lot 4, by constructing an effluent pond in 2008, and then a further three ponds as a response to complaints from neighbours including Mr Graham whose residence on Jimbour Station is the closest sensitive residential receptor to the use. Since refusal, he has obtained a Road Corridor Permit from the Department of Transport and Main Roads and installed piping from Lot 4 down to Lot 363 for treated effluent to be piped and irrigated onto that lot. That of course is an aspect of the present proposal which touches on the GQAL issue.

Before leaving this issue I find it necessary to comment on a submission made by Mr Hughes QC and Mr Lyons at [136] of their trial submission:

“136. … the scale of the abattoir on site grew exponentially without approvals, when it is incredible to think the Appellant and its directors were ignorant of their lawful obligations. Further, for long periods of time, there were significant effluent disposal and odour issues that were not attended to although Mr Waldock know (sic) they were occurring). …”

In my view this is unfair to Mr Waldock, and to Wattlevilla. He was not challenged on what he said were his attempts, undoubtedly sincere, to respond to complaints about odour. It was also not suggested to him that it was “incredible” that he was ignorant of his lawful obligations. Mr Hughes QC touched directly on this topic at the end of his cross-examination at 4-41 of the transcript, and rather than put these propositions, he adopted, fairly I thought, a rather sympathetic approach to a man who had been on “a bit of a learning curve in terms of the expansion”. There is no doubt that a landowner bears the responsibility of complying with the law as it applies to uses on his or her land. Here, it is clear that Mr Waldock was not assisted when he applied in 2002 (to a predecessor of Council) for a building approval for two new cold rooms, obvious evidence of expansion, and then again in 2009 for another cold room. Mr Ure, despite arguing that the use became unlawful in about 2000, strategically avoids this issue in his trial submission. That is understandable, as it is irrelevant to the merits appeal, and to the rehearing de novo.

He did make the point in oral submissions that the 2009 application was withdrawn and then approved by a private certifier, but someone (presumably a Council officer) has nevertheless made an endorsement on the withdrawn application to the effect that no material change of use application was required. Mr Waldock (on his evidence) was not assisted when he sought advice from the EPA in Toowoomba about odour issues. Finally, and soon after this decision refusing the application, and contrary to the advice of its planning manager, Council provided the letter dated 19 November 2012 (part of Exhibit 49 and Exhibit 6 volume 2 tab 58). Mr Houston refers to this letter which relates to a Council resolution, and in his submission in reply characterises the letter as Council accepting “the current use was lawful up to 3,000 tonnes per annum”. The resolution at the Council meeting on 7 November 2012 and the letter to Mr Waldock dated 19 November 2012 were designed to assist him in his dealings with the Department of Environment and Heritage Protection. I do not construe the letter as a clear acceptance by Council by resolution that the current use was lawful. If it did, then it was wrong as a matter of law, as I have determined. Council’s resolution, in light of the position taken on the merits appeal by it, was undoubtedly confusing to Mr Waldock and Wattlevilla.

This is not a case like Gillion (ibid) in which Council successfully obtained enforcement orders against a developer who was using premises unlawfully, and the developer then appealed against a refusal of an application made to regularise an unlawful use. Council has never taken enforcement of proceedings against Wattlevilla, and would probably encounter problems on discretionary grounds if it did. However, all of this is irrelevant to this court’s task in this appeal, and I have made these comments purely in response to the submission made on behalf of RPC referred to above.

(b) Noise and air quality (odour)

These are aspects of amenity impact that can be measured scientifically. Mr King advised Wattlevilla in relation to noise and air quality, and RPC were advised by Ms Richardson on both issues. Mr Savery advised Council on noise issues, and Mr Welshman advised it on air quality issues. The noise experts produced two joint expert reports. They agreed on noise monitoring and representative residential receptors, noise criteria and noise source levels, and agreed on appropriate noise modelling software to predict noise levels, at their first meeting. By the second meeting both Mr King and Mr Savery had conducted ambient noise monitoring, and all agreed on more restrictive noise assessment criteria than those set out in the DERM Concurrence Agency response conditions. They agreed on appropriate acoustic criteria for daytime, evening and night time, and specific noise impact sources from the proposal. As a result of the modelling undertaken, they agreed on appropriate noise control and management issues necessary to protect the acoustic amenity of surrounding noise-sensitive receptors including residential and other uses at Jimbour House including the church and the garden, and Mr Graham’s residence which is approximately 400 metres south of the abattoir. The noise experts recorded no areas of disagreement.

Mr Houston notes that despite the agreement of the experts, and his client’s acceptance of all the conditions proposed by them, nevertheless both Council and RPC still assert conflict with the Planning Scheme in relation to these discrete issues. As I apprehend the arguments made by the other parties, their position is more subtle than that. Both deal with noise and odour under the rubric of inappropriate location and size of the site and/or general amenity impacts by reference to the wider concept of “amenity” as demonstrated in the jurisprudence. In particular Council’s submission is that Wattlevilla has misconstrued the Planning Scheme provisions in proceeding on the basis that it has to demonstrate no acceptable impact. I will return to this issue later in my reasons.

The air quality experts produced three reports. Clearly, odour and noise emissions were themes raised in the 14 properly made submissions during the period of public advertising of the proposal. The odour issue from such a use is one recognised by Mr Waldock himself in his positive responses to complaints about this from Mr Graham and others. It is also squarely raised in Exhibit 25, Mr Graham’s statement, which is not challenged. Since the installation of the additional effluent ponds on Lot 4, and piping down to Lot 363, Mr Waldock in his statement records no complaint. Clearly the latter action occurred after refusal. In his submission dated 5 April 2011, Mr Graham refers to being subjected to “foul odours” from the abattoir “for the past two years”. In his trial statement, he says he first noticed odour problems and noise from the abattoir in “about 2007”. This is consistent with a material increase in intensity and scale from around that time. Mr Graham attributes the “odour issue” to the installation of the effluent ponds. He then records at paragraphs 18 to 23 of his statement the following:

“18. At this time, odour from the abattoir was my main concern and I found that it would be a problem about every second day on average. The odour emanating from the abattoir would intensify after periods of rain when effluent tanks would overflow. I also found that the odour would become more noticeable when effluent was being pumped out and when the wind was blowing from the north or northwest.
19.In 2009, I recall visiting Lincoln in the lead-up to the biennial ‘Opera at Jimbour’ which was to be hosted at Jimbour Station. At this time, the odour emanating from the abattoir was intense. I approached Lincoln to see if there was anything we could do to help him to reduce the odour issue before the opera event as it was only one week away. I pointed out that there would be a lot of influential visitors and it would probably be in his best interests to at least try and kerb (sic) the odour problem before they arrived. I recall that nothing of any significance was achieved as a result of this conversation as Lincoln became very defensive. Prior to the event, Lincoln did manage to cover the effluent ponds with hay. However, in my opinion, this measure did not reduce odour to any significant degree, it was fortuitous that during the opera event, the wind was not blowing from the north or northwest, and therefore, the odour emanating from the abattoir was not an issue at this time.
20.I have noticed that the odour issue remains to this day, although it has become less frequent in recent years.
21.From my perspective, apart from the odour my other main concern with the abattoir relates to squealing pigs, which has become an increasingly major issue since 2009. I have found that this noise is exacerbated if the wind is coming from the north or northwest.
22.The noise of squealing pigs has been a frequent problem at all hours of the day and night. I have been woken up numerous times throughout the night to the sound of squealing pigs. When the wind is blowing from the north or north-west quarter, I find that the noise carries straight through my home and through my bedroom door. I have found that guests at my home also frequently comment on the noise caused by the pig squealing.
23.I have kept a written record of instances of noise and odour from the abattoir since 24 March 2013. However, due to the often constant noise from pig squealing, I sometimes either forget or do not bother to record this. …”

A copy of his diary with recordings from 24 March 2013 to 24 March 2014 demonstrates why this court has always recognised that impacts on amenity from measurable sources such as noise and odour are not to be simply determined by the evidence of experts whose joint opinions are nonetheless important for the consideration of the assessment manager. It also is important for the court to keep in mind that the proposal being assessed involves a change to the layout of the effluent ponds as referred to below.

As Jones DCJ observed in Bassingthwaite v Roma Town Council & Ors [2011] QPELR 63 at [34]:

“Notwithstanding the importance of the evidence of experts in cases such as this, the concept of amenity is a wide and flexible one not necessarily determinable by reference to the evidence of experts alone. In Prime Group Properties Ltd v Caloundra City Council & Ors Skoien SJDC said:
“I have decided that, as separate components, no unreasonable adverse impact on the nearby residents in the form of noise, light or unpleasant odours would be caused by this development. But the concept of amenity is far broader than that.’”

At their first meeting the air quality experts agreed on relevant sources of odour emission (the abattoir site and associated waste and effluent treatment systems of Lot 4, and the effluent irrigation site on Lot 363); the appropriate assessment criteria; methodologies and software and other issues which required more information.

In the second joint report of the air quality experts dated 22 November 2013, the experts recorded that meteorological modelling had been completed. In paragraph 19 they identified specific sources of potential odour emission, being the wastewater treatment and storage ponds, irrigation of treatment effluent onto areas on Lot 363, pig holding pens and cattle holding yards at the abattoir, and waste storage from the abattoir kill floor operations. The experts agreed that the extension provided an opportunity for new purpose designed wastewater treatment ponds, which were described based on information provided by Cardno BTO. The experts set out the relevant reference material and the nature and extent of the relevant modelling, and concluded:

“28.Based on the sources and adopted odour emission rates, the odour dispersion modelling demonstrates that the regulatory odour standard is met at all sensitive receptor locations identified on figure 1. The modelling also indicates that predicted odour levels would exceed the EHP odour criterion at the cemetery.
29.Figure 4 shows a diurnal profile of odour levels plotted against time of day, which identifies higher odour levels would occur during the night. During the hours 8 a.m. to 5 p.m. (when the experts consider it likely that visitors would access the cemetery) the modelling predicts that maximum odour concentrations would be within the odour criterion.”

They noted in paragraph 35 the potential for occasional odour impacts, primarily under circumstances when unexpected events resulting in increased odour emissions from the wastewater treatment pond and, as a consequence, the effluent irrigation system, and made recommendations to be included in the Draft Site Based Management Plan. No areas of disagreement were recorded.

On 28 February 2014 Wattlevilla produced an amended layout plan which included changes to the layout of the effluent disposal ponds, recommended by the effluent disposal and stormwater experts in the course of their joint meeting process. Consequently a third joint meeting was held between the air quality experts to consider further modelling produced by Mr King to take into account the amended layout plans. In the third report the air quality experts noted that the relevant amendments to the layout plan were as follows: Pond 4 – the final holding pond – the surface area of the pond has increased from 2,200m² to 2,400m² and the effluent irrigation area is now proposed to be based upon 6 ha plots rather than 3 ha plots. Irrigation of the five 6 ha plots (total area of 30 ha) should occur on a rotational basis with each plot being used for one year and then spell 1:06:04 for four years.

They proposed conditions in the event of approval and recorded no disagreement. Wattlevilla has advised all other parties that in the event of an approval it would agree to the imposition of conditions in accordance with the specific recommendations of the air quality experts set out in the second and third joint reports of those experts.

Again, the responses of Council and RPS in relation to odour do not seek to depart from the agreements of the experts, rather each deal with this issue under the amenity impact heading, and I will deal with this issue later in my reasons under that heading.

(c) Surface water, groundwater and effluent disposal

Again, all parties nominated experts. Dr Johnson advised Wattlevilla, Mr Bristow advised Council, and Mr Sutherland advised RPC. There were seven joint expert reports, although one is in the form of an advice from Mr Sutherland and Mr Bristow to Dr Johnson. There is no doubt that these issues have been dealt with comprehensively and were complicated somewhat by the late introduction by RPC of the GAQL and SCL issue in relation to Lot 363. Reports by Cardno BTO (Dr Johnson’s firm) titled the “Jimbour Abattoir Effluent Treatment and Irrigation Disposal Final Report” and “Jimbour Abattoir Stormwater Management Plan” are attached to joint expert report 7, and all experts agree that these can reliably form the basis of relevant conditions to be imposed on any approval. There were no areas of disagreement amongst the experts.

The only expert required for cross-examination was Mr Sutherland, and that primarily related to requirements in the report and management plans to protect GAQL and SCL qualities on Lot 363. Mr Sutherland acknowledged that the solutions proposed by the experts were complex and would require significant management in accordance with the detailed DSBMP.

Dr Johnson and Mr Collins, advising Council, also prepared three joint reports relating to flooding issues. Flooding on Lot 363 was identified in Council’s Decision Notice as a reason for refusal, and the experts also considered flooding issues relative to Jimbour Creek, the flowpath of which is close to Lot 4. As a result of the experts’ advice, flooding is no longer an issue in the appeal.

(d) Visual amenity and landscape character

In these areas Mr McGowan advised Wattlevilla, and the town planners Mr Perkins and Mr Brown advised the Council and RPC respectively. This was a prominent disputed issue in the appeal, touching upon a number of disputed issues: incompatible land uses, including location relative to other land uses e.g. the cemetery; size of the proposed development and setback issues; impact on amenity; ambience and character of the locality, etc.

Mr McGowan is one of the experts who has formulated his opinions in relation to visual amenity on an assumption that the assessment of impacts is to be undertaken by reference to “the extent to which the proposed additions and increased activity will be perceptible and whether more of the same type of structure and same use would have perceptibly more impact”. In this regard, although Mr Perkins and Mr Brown agreed (as they had to) that the existing buildings and activities were part of the landscape character in the locality, they acknowledged that Mr McGowan’s approach is somewhat artificial as it assumed that the present use was lawful. I have referred earlier to my conclusions on this issue. Certainly, activities have increased substantially since 2006/2007, and a cold room was added in 2009 to the north-eastern corner of the existing building.

I agree with the experts that the viewing receptors of concern are from the point of view of visitors to the historic cemetery, and travellers along Jimbour Station Road approaching the site from the west in particular and travelling towards the entrance to Jimbour House. However travellers departing from Jimbour House from the east will also be affected. Ultimately, although he did not think it was warranted, Mr McGowan produced an updated landscape plan (see Exhibit 1 p 33) which includes planting of tree species including large trees in the road reserve which Council has agreed to. He also upgraded plantings and screenings along the boundary of the site where there is the unnamed access road to the cemetery, which I accept will appropriately screen the use from visitors on the actual site of the cemetery. All experts agree that the proposed screening in the road reserve will reduce impacts for people driving east towards the entrance to Jimbour House, although from where one first sees the sign to Jimbour House in Jimbour itself, to the site of the proposed use, the landscape is essentially open in character except for the abattoir and an existing house and shed located north of Macallister-Bell Road.

One of the prominent themes of Wattlevilla’s case on this issue is based on Mr McGowan’s opinion that the abattoir does not present as out of place when compared with other buildings in the general area which he has photographed and presented as part of his trial report. Some of these buildings were visited by me during the inspection.

There are a number of difficulties with this evidence. Firstly, many of these other buildings are clearly associated with rural activities such as large sheds and silos; most, if not all, are well set back from the road and appear to be part of much larger land holdings. I agree with Mr Brown and Mr Perkins that the existing (unlawful) and proposed abattoir represent a highly prominent visual feature because of the size of the complex, its proximity to the road frontage, and the character of the complex as an abattoir. This is a reference to the proposed increase in size of the abattoir, the number of fulltime employees (with the obvious need for them to drive to and from the site on workdays), the number of truck deliveries per week, the tri-weekly waste removal, and hours of operation; none of which (apart from size alone e.g. machinery shed or silo) could be reasonably viewed as being associated with rural activity by the casual viewer. In relation to visitors to the cemetery (which I accept are not in high numbers), a lot of these necessary vehicle movements along the new access to the site, which is closer to the cemetery access road, will also detract from the rural landscape character in that area. The extensive site coverage of the proposal (including the substantial increase in the abattoir building itself) but also including the proposed, new aerobic and anaerobic pond system and hardstand manoeuvring area, is clearly demonstrated in Exhibit 1 on p 26. In the second joint expert report, Mr McGowan agreed with Mr Brown that the present building is prominent. His opinion was however that it was not the most prominent visual feature between Jimbour and Jimbour House – he believed the towers on Jimbour House and the silos on Jimbour Station to the east would be more prominent to travellers proceeding east along Jimbour Station Road. The silos are clearly associated with a rural use, and the inspection and the photographs (Exhibits 54 and 54A) tendered through Mr Brown, lead me to prefer Mr Brown’s evidence in this regard. In cross-examination it was accepted by Mr McGowan that there will be a significant increase in the bulk of the building in circumstances where the existing building was prominent; there will be a quadrupling of the GFA; the use of the road reserve as screening is not ideal, although Mr McGowan did not think it impractical; the abattoir proposal could not be mistaken for a farm shed; if the use was operating it would be more obvious that it was something other than a farm shed; if noise was emanating from the proposal it would be even more abundantly clear that the use was not a farm shed; in terms of front boundary setbacks, the abattoir proposal is clearly closer to the front boundary than any other building outside the township of Jimbour; and, the proposed increased building size will be more obvious from the Dalby-Jandowae Road.

As I have noted, Mr McGowan’s latest landscaping plan will to some extent reduce the impacts on visual amenity of users of Jimbour Station Road, particularly those travelling to visit Jimbour House. I cannot accept his evidence that (with the landscaping) the proposal will be “reasonably inconspicuous”. As Mr Brown notes, the abattoir is located at the effective gateway to Jimbour House. It is unrealistic to accept the proposition that visitors intending to go to Jimbour House will be (as it were) looking out for it (rather than following the signs to it), and so not notice the abattoir. As photographs Exhibits 54 and 54A graphically demonstrate, the first sight of the Jimbour House towers will have the more prominent abattoir in the same view path and along the line of travel.

It would follow that in relation to the discrete issue of visual amenity, the proposal would conflict with a number of the outcomes for the purpose of the Rural Zone Code in that it would not protect and enhance “the predominant rural scale … and character” nor would it protect “areas and sites of conservation importance including cultural … landscape values”. It also would conflict with Desired Environmental Outcome 3.1 in that it would not (in relation to the Jimbour cemetery in particular but also Jimbour House) protect and enhance their landscape values and historical significance.

As I have noted, the proposed further planting and screening along the access road to the cemetery and around the boundaries of the cemetery itself, will go some way to protecting its landscape values. However in light of the small size of the site which leads to what RPC describes as “jammed up” infrastructure (effluent ponds, etc.) very close to the cemetery boundary, it is difficult to see how the landscape values of the cemetery are “enhanced” by the proposal.

Mr Ure in his submission in reply has helpfully extracted some relevant definitions from the Oxford English Dictionary. As he notes in his reply dated 12 May 2014, the Planning Scheme expectation when read as a whole is not just that there be no unacceptable amenity impact as a consequence of the proposal, but rather the expectations are to “protect the amenity”; that “rural amenity is protected and enhanced”; and buildings and structures are designed such that the “building and structures are designed such that the amenity of the Rural Zone is protected and maintained”.

“Protect” means, relevantly, to preserve or defend against injury; “maintain” means to preserve. “Enhance” means to raise in degree, heighten, intensify (of a quality, attribute, etc.).

There is conflict as well with 4.1.3.3.4(c) in that the proposal, in relation to visual amenity impacts alone, is not “located … in a manner that protects and enhances the predominant rural scale … form and character”.

(e) Amenity impacts generally

Although non-rural activities are contemplated in the Rural Zone, the Code (understandably) is replete with references to the need to protect amenity, some of which are quoted above. The General Assessment provisions of the Planning Scheme provide guidance as to the approach to be taken to “acceptable solutions”: (4)(b)(iii) and (iv). These provisions are in line with the approach taken consistently to other schemes such as the present one: Friend v Brisbane City Council & Trentham Holdings Pty Ltd [2014] QPELR 24; SDW Projects Pty Ltd v Gold Coast City Council [2007] QPELR 24 at 30. Although in some parts of the scheme the words “do not impact adversely on … amenity” are used (PC-1); in other parts (and very relevantly in those Performance Criteria in the Code dealing specifically with amenity) stronger terminology is employed: “protect … amenity” (PC-2 – Dealing with Scale, a significant issue in this appeal), and also in PC-3 – Operating Hours; and PC-4 – Delivery of Goods. In PC-7 – Setbacks and Boundary Clearances, the Performance Criteria refers to ensuring that “the rural amenity is protected and enhanced”. In PC-9 under “Building” “Structure” Design amenity is to be “protected and maintained”.

I have referred earlier to the agreements reached by the odour and noise experts as to conditions designed to mitigate amenity impacts associated with noise and odour from the abattoir. I have also referred to the unchallenged evidence of Mr Graham, whose residence is the closest sensitive residential receptor to the abattoir. Ms Richardson provided an individual trial report.

As noted above, the air quality experts agree that dispersion modelling suggests that the Jimbour cemetery would experience odour levels above the odour criteria specified by the Department of Environment and Heritage Protection outside the hours of 8 a.m. to 5 p.m..

Ms Richardson, in her individual report, elaborates on the circumstances when odour impacts may occur as a result of unexpected events. These include plant failure, such as the pumps at the wastewater treatment facility; failure of water supply, resulting in cessation of plant; extreme weather conditions, such as extended high temperatures, and; extreme weather conditions, such as extended rainfall, preventing waste being collected from the site on a daily basis. Mr King in his oral evidence did not dispute these phenomena. As Ms Richardson observes:

“Unexpected events of this type can lead to the inability to operate normally and significant odours could arise as a result.”

In relation to noise, the appropriate noise criteria agreed to by the experts is not that noise from the abattoir needs to be inaudible. Ms Richardson observes that there will be occasions when noise from the abattoir may be audible at surrounding properties and this is indeed confirmed by Mr Graham’s unchallenged evidence in relation to the present operation. Ms Richardson also observes that, in relation to delivery of livestock, there may be circumstances where unavoidable delays may arise during transport. The obvious effect would be the necessity of delivering and unloading of livestock outside of required hours for animal welfare reasons. She observes that:

“The existing abattoir operation occurs in close proximity to the eastern site boundary, Jimbour cemetery and Jimbour Station Road. This is not ideal from an acoustic and odour amenity perspective, as the site provides little in the way of onsite buffer, separation of odour and noise emissions from the site. As a result odour and noise impacts from the abattoir operations could affect adjoining land holdings that are under the ownership of others and potentially restrict the future use of parts of these land holdings that are directly adjacent to the abattoir.”

In cross-examination Mr King accepted that from time to time the activities in the abattoir, even if it is designed and managed in accordance with all of the conditions, would be audible at the nearest house, being Mr Graham’s house. This accords with Mr Graham’s evidence. He also accepted that the activities will be audible at the cemetery and audible from Jimbour Station Road. He conceded, quite properly, that odour will be detectable from time to time, and the greatest likelihood of odours being detectable is from, firstly, the anaerobic ponds on Lot 4 and, secondly, the irrigation on Lot 363. He also accepted that if any odour from a pond develops over a Friday, the chances are that the odour may potentially linger and not be able to be cured before Saturday. This is a reference to Mr Russell’s evidence about timing for cultural events and weddings at Jimbour House and surrounds.

Mr King’s evidence also highlighted that if loading was to occur between 5 a.m. and 7 a.m. one would expect trucks to arrive before 5 a.m., and given the distances related to from where pigs will be delivered, there needs to be flexibility as to when deliveries occur. Mr King accepted this leaves the prospect of parking onsite with the trucks, including having pigs in back squealing. He also accepted that by far and away the best way to manage a noxious industry and its resultant potential impacts to nearby land users is to locate it well-removed from other land users and to provide appropriate buffering onsite.

The potential for noise emissions during the pig unloading is real. Of necessity, the pig unloading cannot be completely enclosed. Mr King agreed that there will be noise and there is a potential for it to be audible as a consequence of wind. He also agreed that there is no doubt that, from time to time, even if the proposal is designed and managed in accordance with the conditions sought to be imposed, the activities would be audible at Mr Graham’s house, audible at the cemetery, and audible from Jimbour Station Road and from parts of Jimbour Station, including the chapel and Jimbour House.

Ms Richardson’s evidence was that maximum noise levels from cattle trucks and deliveries could be audible when sourced to receptor winds which may occur during the day, evening and night. Maximum noise levels during cattle delivery and unloading activities at the abattoir are predicted to be audible under source to receptor winds at Karl Graham’s house, Jimbour Church and Jimbour House.

Also relevant to this issue are the statements of the lay witnesses tendered by Council and also the statements of Mr Graham and Mr Russell QC. These statements further highlight not only the tangible notions of amenity but also the various intangible elements of amenity and character. Similar evidence is found in the submissions received by Council during the Development Application process.

It has to be kept in mind that this evidence relates to the present operation which is of a significantly lower scale to that proposed in the application.

“Amenity” is not defined in this Planning Scheme. The classical statement with respect to amenity is found in Broad v Brisbane City Council [1986] 2 Qd R 317, in which Thomas J (with whom Connolly J concurred and de Jersey J (as his Honour then was) agreed) said:

“… although on the one hand it was submitted that amenity must be test against the just expectation of neighbours, it was submitted that the ultimate test is objective.
I do not think that the concept admits of a tidy ‘objective or subjective’ classification. Many statements can be found in the Local Government Reports indicating the relevance of subjective factors and many others can be found suggesting that the ultimate test is objective. Such views are not necessarily inconsistent. In support of the fact that the ultimate test is objective are statements that the court must bear in mind ‘an injury to the amenity must be determined according to the standards of comfort and enjoyment which are to be expected by ordinary people of plain, sober and simple notions not affected by some special sensitivity or eccentricity’ … Again descriptions of amenity of a neighbourhood as ‘the quality which it has of being pleasant or agreeable’ … and as ‘that element in the appearance and layout of town and country which makes for a comfortable and pleasant life rather than a mere existence’ suggests that the ultimate inquiry is an objective one at the same time recognising that it involves wide-ranging and subtle criteria that may affect different individuals in different way. It is inevitable that individual perceptions will be received and evaluated in the course of ascertaining what the amenity is in a particular neighbourhood and what effect the relevant proposal will have upon it.
…
… The wide-ranging concept of amenity contains many aspects that may be very difficult to articulate. Some aspects are practical and tangible such as traffic generation, noise, nuisance, appearance, and even the way of life of the neighbourhood. Other concepts are more elusive such as the standard or class of the neighbourhood, and the reasonable expectations of a neighbourhood. The creation of an institution within a neighbourhood is in my view capable of altering its character in a greater respect than can be measured by the additional noise, activity, traffic and physical effects that it is likely to produce.”

The approach to be taken is aptly summarised by Dodds DCJ in Acland Pastoral Co Pty Ltd v Rosalie Shire Council [2008] QPELR 342 at 343-349. His Honour said (citations omitted):

“Consideration of amenity in a town planning context is not in the abstract. It is informed by the planning controls applying in the area under consideration and the notion of reasonableness. … Proposed development will often affect existing amenity. What is unacceptable is a detrimental effect to an unreasonable extent according to the reasonable expectation of other landholders in the vicinity given the sorts of uses permitted under current town planning controls. While the subjective views of those whose amenity may be affected by a proposed development are not to be ignored, in the final analysis the question must be answered ‘according to the standards of comfort and enjoyment which are to be expected by ordinary people of plain, sober and simple notion not effected by some special sensitivity or eccentricity’.”

The standard of amenity that residents are entitled to enjoy or expect is to be assessed objectively having regard to the Planning Scheme and its intent for development of the area.

As I have endeavoured to demonstrate, this Planning Scheme in its terminology would, in my opinion, reasonably lead residents to an expectation that it is not just that there be no unacceptable amenity impact as a consequence of the proposal.

It follows that in assessing the proposal, I would regard it as conflicting with: PC‑1(a), particularly in relation to visual amenity; (b), for reasons expressed earlier as to how the abattoir would present in that it does not demonstrate a nexus with rural activities or cultural resources such as Jimbour House and the cemetery, and; (e), for essentially the reasons expressed earlier in relation to the discrete topic of visual amenity. I am also satisfied that there is conflict with PC-2 because of the scale of the proposal, on such a small site, which does not protect the amenity of the ‘Rural’ “Zone”. As Mr Ure observes by reference to Exhibit 47, the total use area proposed is 28 times that set out in the Acceptable Solutions.

The proposal is also in conflict with PC-3 which specifically deals with operating hours for non-rural activities in the Rural Zone. The operating hours are set out above, and are well outside the hours contemplated by the acceptable solution. These extended operating hours, with associated activity on the site (such as traffic movements) will not ensure that the amenity of the Rural Zone is “protected”. I accept the opinions of Mr Perkins and Mr Brown in this regard.

As I have noted earlier PC-4, specifically dealing with delivery of goods for non-rural activities, uses the same terminology of PC-3 i.e. “protect” amenity. Delivery of livestock times are referred to above and do not comply with either Acceptable Solution. Although Mr King’s proposals will ameliorate noise impacts to a significant degree, it is difficult to see how the proposal in relation to this issue, protects the amenity of the zone. I agree with Mr Perkins that there is conflict with this Performance Criteria.

PC-7 deals with setbacks and boundaries, and the uncontested evidence about these issues is referred to earlier. It is simply not to the point to suggest that as an abattoir has been in this position for a long time there is no conflict. The clear conflict with this Performance Criteria is an aspect of the size and positioning of the abattoir on the site, which will lead to a perception of a non-rural use of considerable bulk and prominence. Neither Acceptable Solution is satisfied, and the proposal, in relation to setbacks and boundaries, is not such as to protect and enhance rural amenity.

There is also clear conflict with PC-9 in that the proposed building, notwithstanding the substantial raft of conditions agreed by the experts, is of a design that does not protect and maintain amenity in the Zone. There is some minor conflict with PC-11 in that although the proposed landscaping will ameliorate the visual impacts of the proposal, it is difficult to see how it contributes to “a pleasant … rural built form”, particularly here, for the reasons expressed earlier, the proposal will not present as a rural activity. It is also difficult to see how the landscaping contributes “to the Rural Zone’s positive visual qualities”, essentially for the reasons set out above in relation to visual amenity. I also conclude that there is some minor conflict with PC‑13, essentially because of the lack of separation between the proposed use and Jimbour cemetery, and Jimbour House for essentially the reasons discussed above under “visual amenity”. I also conclude that there is conflict with Desired Environmental Outcome 3.1 for essentially the reasons expressed above in relation to the visual amenity and amenity issue generally, particularly intangible impacts on amenity. Jimbour House and the cemetery “landscape values and historic significance” will not be enhanced through what is an incompatible use in this very sensitive location.

(f) GQAL and SCL

This issue was not pursued by Council but it is asserted by RPC that there is conflict with PC-33. A study of the type referred to in footnote 6 to PC-33 has never been undertaken by Wattlevilla but, given the final state of the evidence, it is now probably unnecessary. This issue was discussed as part of the joint expert process involving the water quality and effluent control experts. Mr Sutherland does not assert expertise in this area, but has expertise in relation to scientific triggers that will be monitored pursuant to the Draft Site Based Management Plan prepared by Dr Watt. Mr Thompson, retained by Wattlevilla, is an expert and he has suggested conditions that will mean that furrow irrigation for Lot 363 will ensure that those parts of that land mapped as GQAL under the Planning Scheme will not be alienated, and Mr Sutherland (on behalf of RPC) accepted that this is a reasonable and workable solution. It is not entirely clear because of the small size of Lot 4, but it is probable that part of it (in the area of the anaerobic ponds) is mapped as GQAL, and will obviously be alienated if the proposal proceeds. Mr Sutherland conceded appropriately that Lot 4, because of its size, has no commercial value for agriculture. For these reasons, I do not accept RPC’s argument that the evidence demonstrates some conflict with PC-33.

Conclusions on conflict

It follows from my reasons set out above that the proposal, when assessed against the whole of the Planning Scheme, is significantly in conflict with it. As my reasons demonstrate, the conflict is plainly identified. This leads me to a consideration of whether sufficient grounds exist to approve despite the conflict. The first ground advanced by Wattlevilla is that “there is a need for the development”.

Need

In its notice of appeal Wattlevilla maintained a ground of appeal supporting approval was that:

“There is a need for the expansion for the abattoir because the only other abattoir in Queensland that undertakes the slaughter of pigs is Swickers Kingaroy Bacon Factory Proprietary Limited. The only other location is in South Australia.”

It is accepted that in considering need evidence the question whether need exists is to be decided from the perspective of the community and not that of an applicant for a development, its competitors or objectors: Luke v Maroochy Shire Council [2003] QPELR 447 at [34] to [36].

In its trial submission Wattlevilla devotes only six paragraphs to this issue and two of those are references to cases which state principles that are uncontroversial.

Mr Duane gave evidence on behalf of Wattlevilla and Mr Anderson (a meat industry specialist) on behalf of Russell Pastoral Company. The figures produced in the joint report indicate that although in the last 20 years pig numbers in Queensland have risen, in the same period pig producers have dropped. Indeed figure 2.3 in Volume 2, Exhibit 3, Tab 15 indicates that since 1962 pig producer numbers have dropped from 50,000 to well below 10,000 in 2010. Mr Houston in his submission does not refer to Exhibit 28 which was a series of letters from pig producers in support of the proposal. It is not surprising that he does not rely on this evidence as it essentially offends the principle that the question whether a need exists is to be decided from the perspective of a community and not that of the applicant for development. A number of the statements also proceed on a number of false premises including that Swickers is operating at full capacity and that the only alternative slaughtering facility to Swickers was in South Australia. Mr Duane’s individual report map 1-1 also shows a number of abattoirs in South East Queensland located within 325 kilometres of the abattoir site. In cross-examination Mr Duane accepted that there are a number of small abattoirs serving South East Queensland; the viability for local pig farmers is not dependent upon the court approving this development; the viability of the business presently conducted by the abattoir does not depend upon approval of the expansion (indeed Mr Waldock confirmed the existing business is successful); the expansion of the abattoir will not result in the slaughter of any more pigs in South East Queensland; and the approval of the expansion of the abattoir will not result in any change to the price of pork to the consumers of pork in South East Queensland. He also accepted that the size and scale of this proposal is insufficient to have impacts on the economics of the pork industry in South East Queensland; there is plenty of opportunities for both supermarkets and the more boutique “players” to obtain pork; and there is no particular feature about the site in economic terms and indeed, from an economic point of view, it may be better if it was located further south closer to bigger pig producers. I accept Mr Anderson’s evidence that at present there is a slaughter capacity in the region of approximately 30,000 head per week and that pig processing in South East Queensland is operating at about 85% of capacity. An additional 5,000 pigs weekly could be processed in existing plants before capacity limits are reached under existing working arrangements. A change in working arrangements in the two major plants to a six day a week (including Swickers) would add a further 5,000 pigs per week for available capacity.

Because all the pigs being offered for sale are already being processed the proposed development would not result in a net increase in employment in pig processing. The net effect would be that a few jobs will be transferred from the plants which lose the throughput for that which gains the throughput. I accept the evidence of Mr Anderson that transport costs are a very small component of pork production and by far the most significant cost is in grain for feeding developing pigs. It follows that Mr Duane’s reliance on maintenance of the road system and decreased fuel costs in support of his argument in favour of the proposal is of little weight.

In my opinion the appellant has not demonstrated any community need for the proposal. My findings in relation to the pre-existing lawful use issue dispose of the other ground relied upon by Mr Ovenden and my conclusions about amenity conflicts also deals with the ground relied upon as a result of the judgment of Holmes JA in Lockyer Valley Regional Council v Westlink Proprietary Limited (2012) 191 LGERA 452 at [25]. As his Honour Judge Robin QC, DCJ said in Viridian Noosa Pty Ltd (Receivers and Managers appointed) the Sunshine Coast Regional Council [2013] QPEC 54 what was said by her Honour at paragraph 25 applies where there is some other ground accepted by the court.

It follows that the appeal should be dismissed.

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Citations

Wattlevilla Pty Ltd v Western Downs Regional Council & Anor [2014] QPEC 47

Most Recent Citation

Ausco Modular Pty Ltd v Western Downs Regional Council [2017] QPEC 58

Cases Citing This Decision

1

Ausco Modular Pty Ltd v Western Downs Regional Council [2017] QPEC 58

Cases Cited

4

Statutory Material Cited

0

Lockyer Valley Regional Council v Westlink Pty Ltd [2012] QCA 370

Lockyer Valley Regional Council v Westlink Pty Ltd [2011] QCA 358

Lockyer Valley Regional Council v Westlink Pty Ltd [2012] QCA 370

CITATION:	Wattlevilla Pty Ltd v Western Downs Regional Council & Anor [2014] QPEC 47
PARTIES:	WATTLEVILLA PTY LTD (appellant) v WESTERN DOWNS REGIONAL COUNCIL (respondent) and RUSSELL PASTORAL COMPANY (co-respondent by election)
FILE NO/S:	4500/12
DIVISION:	Planning & Environment Court
PROCEEDING:	Appeal
ORIGINATING COURT:	Planning & Environment Court at Brisbane
DELIVERED ON:	28 August 2014
DELIVERED AT:	Maroochydore
HEARING DATE:	29 April, site inspection 30 April, 1^st-2^nd May, 5^th-9^th May
JUDGE:	Robertson DCJ
ORDER:	Appeal Dismissed
CATCHWORDS:	PLANNING & ENVIRONMENT; Appeal against refusal for a development permit for a material change of use; whether the impacts on amenity both visual and general from the proposed use were such as to constitute conflict with the Planning Scheme; where proposal abuts a historical site; whether conflict arises because of co-location of incompatible uses; whether proposal conflicts with Planning Scheme; whether grounds exist to approve notwithstanding conflict. PRE-EXISTING LAWFUL USE RIGHTS: where building approvals to add cold rooms had been obtained but where no town planning permit had ever been obtained; where intensity of scale of use had increased.
COUNSEL:	Mr Houston for the appellant Mr S Ure for the respondent Mr C Hughes QC and Mr J G Lyons for the co-respondent by election
SOLICITORS:	HWS Lawyers for the appellant King and Company for the respondent Norton Rose Australia for the co-respondent by election